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2016 DIGILAW 793 (KER)

P. S. PRASAD v. SUB INSPECTOR OF POLICE PALARIVATTOM POLICE STATION

2016-09-20

RAJA VIJAYARAGHAVAN V.

body2016
ORDER : RAJA VIJAYARAGHAVAN V., J. 1. The petitioner herein is the accused in Crime No. 540 of 2016 of Palarivattom Police Station. Aforesaid crime has been registered alleging offence punishable under Section 9B(1)(b) of the Explosives Act, 1884. 2. The prosecution allegation is that on an inspection conducted in the shop of the petitioner on 10.4.2016 at 4p.m., he was found in possession of 710 Kgs of manufactured fireworks and Chinese crackers. The explosive articles were seized and the shop room was closed and sealed. 3. The petitioner approached the court below and moved an application for obtaining interim custody of the permitted quantity of explosives on the ground that he was carrying on the business of fire crackers on the strength of a licence and the same is valid till 31.3.2017. However, by Annexure-A1 order dated 13.4.2016, the said application was dismissed, expressing an apprehension that it is dangerous to retain the explosive articles in the shop room, more so when the shop room was situated in a crowded area at the Palarivattom junction. Aggrieved by Annexure-A1 order, Crl.R.P.No.21 of 2016 was preferred before the Court of Session and by Annexure-A2 order, the said application was also dismissed. 4. It appears that a communication was addressed to the Deputy Chief Controller (Explosives) seeking immediate action to diffuse the explosives but due to unavailability of experts, the explosives have not been diffused till date. 5. I have heard the learned counsel for the petitioner, the learned Public Prosecutor and the learned ASGI, who appears for the additional 3rd respondent. 6. The learned counsel submits that the petitioner is a licensee and he is entitled to possess 50 Kgs of manufactured fireworks and 450 Kgs of Chinese crackers. The mere fact that the petitioner was found in possession of some excess quantity of Chinese crackers over and above what is permitted under the licence is no ground to disrupt his business is the foremost submission. It is also submitted that even if the allegations are admitted only an offence under Section 9B(1)(c) is made out. It is pointed out that the petitioner has been carrying out the same business for the past 19 years and the licence was renewed last in the year 2014. According to the learned counsel, the courts below failed to appreciate the facts of the case in its true perspective. It is pointed out that the petitioner has been carrying out the same business for the past 19 years and the licence was renewed last in the year 2014. According to the learned counsel, the courts below failed to appreciate the facts of the case in its true perspective. It is further submitted that from 13.4.2016, his shop is sealed due to the unavailability of an expert to diffuse the excess quantity of crackers in his possession, which according to the learned counsel is unjustified and is violative of the rights guaranteed to the petitioner under the Constitution of India. 7. The learned Public Prosecutor on the other hand supported the decisions of the court below and submitted that no interference is warranted. 8. The Deputy Controller of Explosives was impleaded as additional 3rd respondent. The learned Central Government Counsel appearing for the 3rd respondent would submit that due to non availability of officers competent to diffuse the explosives, they were not able to take any action on the basis of the directions issued by the learned Magistrate. However, the learned counsel would submit that necessary steps shall be taken to diffuse the explosives within a period of two weeks from today. The same is recorded. 9. Admittedly, the petitioner is carrying on the business on the strength of a valid license issued to him. It is not reported that the license has either been cancelled or revoked. The records would reveal that 210 kgs of manufactured fire works/crackers were found in excess of the quantity which could have been legally possessed by the petitioner in terms of the license issued to him. The courts below have rejected the claim of the petitioner to secure interim custody of the explosives. It is obvious that the petitioner is more concerned with the closure of the shop and the restriction imposed in carrying on the business. Now that the 3rd respondent has undertaken that the quantity of explosives found in the shop room over and above the permitted quantity can be diffused or otherwise disposed of within a period of two weeks, I am of the view that the following orders can be passed to secure the ends of justice. 10. Now that the 3rd respondent has undertaken that the quantity of explosives found in the shop room over and above the permitted quantity can be diffused or otherwise disposed of within a period of two weeks, I am of the view that the following orders can be passed to secure the ends of justice. 10. This petition is disposed of with the following directions: (a) In so far as the criminal proceedings initiated against the petitioner under Section 9B(1)(b) of the Explosive Act is concerned, the same shall be continued unabated. The contention of the petitioner that only the penal provision under Section 9B(1)(c) is attracted is left open. (b) The 3rd respondent shall deploy a competent officer to diffuse or otherwise dispose of the explosives which were found in the shop of the petitioner, over and above the quantity permitted as per the license issued. This shall be done within a period of two weeks from the date of this order. (c) Immediately after the excess quantity of explosives are diffused or otherwise disposed of as directed above, the 1st respondent shall unseal the shop room and permit the petitioner to carry on the business if the petitioner is having all valid licences under law.